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Report No. 27

Order XXI, rule 42

Local Amendments made by certain High Courts make provision for pre-payments of expenses of watching corps. This was also the recommendation made by the Civil Justice Committee1. It is considered unnecessary to adopt this minor amendment.

1. Civil Justice Committee (1924-25) Report, p. 407, para. 19.

Order XXI, rules 46A to 461 (New)

1. These carry out the recommendation made in the Fourteenth Report1-2. The object is to make detailed provisions for procedure in garnishee cases. They mainly follow the Calcutta Amendments. Order XXI, rule 46A et seq. Cf. also Order 45. R.S.C. 1833, which seems to continue after the 1932 Revision.

2. Rule 46A(3) is intended to make the provision comprehensive.

3. In rule 46F, it has been made clear that payment by the garnishes will protect him in both the situations, namely, where the order of the court in the garnishee proceedings is set aside, and where the decree under execution (on which the proceedings in garnishee were taken) is set aside. On this point, rule 46F of the Calcutta Amendment merely provides for setting aside, etc., of such judgment, but the language of Order 45, rule 7, Rules of the Supreme Court, is more elaborate. The latter has been drawn upon.

1. 14th Report, Vol. I.

2. See also Civil Justice Committee, (1924-25), Report, p. 390, para. 22.

Order XXI, rule 48

The amendment is intended to make the provisions of rule 48 applicable to persons who, though not servants of the Government, are employees of Corporations engaged in trade or industry and established by statute or Government companies. For the purposes of rule 48 (attachment of salaries) such persons should, it is considered, be treated on the same footing as Government servants.

In drafting the amendment, assistance has been taken from section 21 of the Indian Penal Code, as amended in 1958.

Order XXI, rule 48A

1. This is new, and is intended to lay down the procedure for attachment of private salaries. There is no express provision in the Code on the subject, and up to now, the attachment of private salaries was difficult, because they were regarded as not attachable until they actually became due at the end of the month. Since, the position is now being altered1, it is considered that a specific provision should be inserted on the subject, instead of leaving the attachment of such salaries to be dealt with under Order XXI, rule 46, which deals with attachment of debts and all movable property not in possession, etc.

2. In drafting this provision, the language of Order XXI, rule 48, dealing with salaries of Government servants, etc., has been drawn upon, with suitable changes, and, particularly, this important modification, that the disbursing officer" of the employer should be within the jurisdiction of the court.

3. The present position would seem to be that such salaries are "debts"2.

4. Whether the limitation as to the jurisdiction of the court (namely, that the disbursing officer should be within its local limits) should be removed has been considered. While no such limit exists in the case of salaries of public employees, it is felt that it should be there in the case of private employees. The position of public employees is different, because their scales of pay are laid down precisely by a centralised authority, and the authority for drawing pay is also in many cases issued from onescirtz, so that the likelihood of dispute or doubt is not great. In the case of private empl s, there is no such centralisation, and it may be inconvenient if the employer (of a private employee) whose office is situated in one place is required to deal with a distant court under an attachment effected by it.

1. See the amendment proposed to section 60.

2. See case-law cited in V.V. Subba Rao v. Mohd. Hussain Khan, AIR 1964 AP 395 (September).

Code of Civil Procedure, 1908 Back

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